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Joseph v. State (10/13/2006) ap-2067

Joseph v. State (10/13/2006) ap-2067

     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878


) Court of Appeals No. A-8939
Appellant, ) Trial Court No. 3AN-03-5040 Cr
v. )
) O P I N I O N
Appellee. ) No. 2067 October 13, 2006
          Appeal  from the Superior Court,  Third  Judi
          cial  District,  Anchorage,  Larry  D.  Card,

          Appearances:   David  D.  Reineke,  Assistant
          Public  Defender, and Quinlan Steiner, Public
          Defender,   Anchorage,  for  the   Appellant.
          Diane   L.   Wendlandt,  Assistant   Attorney
          General,  Office of Special Prosecutions  and
          Appeals,  Anchorage, and  David  W.  M rquez,
          Attorney General, Juneau, for the Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          MANNHEIMER, Judge.

          Claude   J.   Joseph  was  convicted  of   third-degree
controlled  substance  misconduct  (possession  of  cocaine  with
intent  to  distribute  it).1  The police  obtained  the  primary
evidence  against  Joseph  (i.e., the cocaine)  when  the  police
chased,  caught,  and  detained Joseph in connection  with  their
investigation of another offense:  use of marijuana in  a  public
          This appeal presents two main questions.
          First,  did the police have lawful grounds for  chasing
Joseph   that is, lawful grounds for attempting to subject Joseph
to  an  investigative  stop?  Under the Alaska  Constitution,  as
construed by our supreme court in Coleman v. State, 553  P.2d  40
(Alaska  1976), the police may conduct an investigative  stop  if
they have a reasonable suspicion that the person being stopped is
committing,  or  has  just committed, a crime involving  imminent
public danger or recent serious harm to persons or property.  Did
the  facts known to the police when they commenced their  efforts
to detain Joseph satisfy the Coleman test?
          Second,  if the police did not have lawful grounds  for
chasing Joseph, should this Court apply the exclusionary rule  to
suppress the fruits of that unlawful chase?
          In  California  v. Hodari D., 499 U.S. 621,  111  S.Ct.
1547,  113  L.Ed.2d 690 (1991), the Supreme Court held  that  the
exclusionary  rule  does not apply to evidence  that  the  police
obtain  while  a  person  is fleeing from an  impending  unlawful
police  detention. The Supreme Court held that  the  exclusionary
rule  only applies to evidence that the police obtain after  they
succeed  in  unlawfully seizing a person.  Because Joseph  tossed
the  cocaine to the ground in the sight of the police  while  the
police  were chasing him, before the police actually  caught  and
subdued  him,  we must decide whether to adopt the interpretation
of  the exclusionary rule espoused by the Supreme Court in Hodari
D., or instead join the dozen states that have rejected Hodari D.
on state law grounds.
          For  the  reasons explained here, we conclude that  the
police, when they began to chase Joseph, did not have grounds for
subjecting  him  to an investigative stop.  We  further  conclude
that  we  should reject California v. Hodari D. as  a  matter  of
state  constitutional law.  We therefore conclude that Joseph  is
entitled  to suppression of the evidence that the police obtained
as a result of chasing him.

     Underlying facts
               In  the  early  evening of May  16,  2003,  a
     person  called 911 in Anchorage to report that two  men
     were walking down the street, smoking a joint (i.e.,  a
     marijuana cigarette).  The caller said that the two men
     were  black, that they were wearing dark clothing,  and
     that  they  were  walking  near  the  intersection   of
     Thompson Avenue and Taylor Street in Mountain View.
               Anchorage Police Officer Charles Reynolds was
     on  patrol  about four blocks away, and he  received  a
     dispatch to investigate this report.  Driving westbound
     on Thompson Avenue, Officer Reynolds observed two black
     men,  both  wearing  dark  clothing,  standing  at  the
     intersection  of  Schodde Street and  Tarwater  Avenue.
     (This location is one block south and one block west of
     the intersection of Taylor Street and Thompson Avenue.)
     The  two men were standing next to a Ford minivan,  and
     they were chatting with two women.
               Reynolds stopped his patrol car about fifteen
     feet from the Ford van.  He intended to obtain the  two
     mens  identities  and  then issue  them  citations  for
     public use of marijuana (a class B misdemeanor).3
          When Reynolds got out of his vehicle, he  did
not  see  any  of the four people holding  a  marijuana
cigarette.   Nevertheless, Reynolds  directed  the  man
closest to him to approach the patrol car.  As this man
began  to  move toward him, Reynolds smelled  a  strong
odor  of marijuana coming from the area where the  four
people  were  standing, although it was  impossible  to
tell   whether  this  odor  was  emanating   from   any
particular person.
          When  the  man  got  close to  him,  Reynolds
informed  the man that he was investigating a complaint
that two men were smoking marijuana in that area.   The
man  did  not physically resist Reynolds but, according
to  Reynolds,  the  man was on the  verge  of  becoming
verbally  ...  non-compliant, so  Reynolds  decided  to
place  the  man  in handcuffs for purposes  of  officer
          While Reynolds was placing this first man  in
handcuffs, the second man  Claude Joseph  began walking
away.   Reynolds  called out for Joseph  to  stop,  but
Joseph continued walking away.  Joseph had his hands in
his  pockets  as he walked away, and Reynolds  directed
Joseph to take his hands out of his pockets, but Joseph
continued to walk away with his hands in his pockets.
          At  that  same time, a member of the Mountain
View  Community Patrol arrived on the scene and offered
to  watch the first man while Officer Reynolds  pursued
Joseph.   Freed from the task of supervising the  first
man, Reynolds again called out to Joseph, directing him
to  stop.  In response,  Joseph began to run.  Reynolds
gave chase, continuing to yell for Joseph to stop.
          Reynolds  began  to  gain  on  Joseph.   When
Reynolds  was almost within arms reach, Joseph  reached
into  his  pocket  and  tossed away  a  plastic  baggie
containing a white chalky substance, about the size  of
a  golf  ball.  The baggie landed on a patch of  grass.
Joseph continued to run, and Reynold continued to chase
Joseph.   Eventually, Joseph doubled back to  the  area
where he had discarded the baggie, and there he stopped
running.   Reynolds caught Joseph, handcuffed him,  and
placed him under arrest.
          While all of this was going on, the first man
(the  one  who  had  been left in the  custody  of  the
Community  Patrol) fled the scene.  This man was  never
          The  baggie that Joseph had tossed  away  was
found  to contain twenty individually wrapped rocks  of
cocaine  weighing  a  total of  approximately  thirteen
grams.  Based on this evidence, Joseph was indicted for
third-degree controlled substance misconduct.
          Following  his indictment, Joseph  asked  the
superior  court to suppress the cocaine  found  in  the
          plastic baggie.  He argued that this evidence was the
fruit of an unlawful seizure of his person.
          Superior  Court Judge Larry D. Card concluded
that,  given the circumstances of Josephs case, Officer
Reynolds  had  a reasonable suspicion that  Joseph  had
just  been  smoking  marijuana in public.   Judge  Card
further concluded that the use of marijuana in a public
place  constituted  an  imminent  public  danger   thus
justifying  an  investigative  stop  under   the   rule
announced  by  the Alaska Supreme Court in  Coleman  v.
State, 553 P.2d 40, 43 (Alaska 1976).

Even  though Officer Reynolds may have had a reasonable
suspicion  that Joseph had just been smoking  marijuana
in  public,  the  public use of  marijuana  is  not  an
imminent public danger for purposes of the Coleman rule

          In  Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868,
20  L.Ed.2d 889 (1968), the United States Supreme Court
held that, consistent with the Fourth Amendment to  the
United States Constitution, police officers may briefly
detain  people  to investigate a potential  crime  even
though the officers do not have probable cause to  make
an  arrest.   The  Supreme  Court  held  that  a  brief
investigative detention is justified if the police have
an   objectively  reasonable  suspicion   of   criminal
activity   that is, if the police can point to specific
and   articulable  facts  which,  taken  together  with
rational   inferences  from  those  facts,   reasonably
warrant th[e] intrusion.4
          In  two  decisions that pre-dated Terry,  the
Alaska  Supreme  Court had upheld  brief  investigative
detentions,  based  on  less than  probable  cause,  in
situations  where  the police had reasonable  suspicion
that  imminent  public  danger exist[ed]  or  that  the
person  being  detained had recently  [caused]  serious
harm.5   And in Coleman, when the Alaska Supreme  Court
was  asked  to  re-assess the legality of investigative
stops  in  light  of the United States  Supreme  Courts
decision in Terry, the Alaska Supreme Court re-affirmed
this limitation on investigative stops.
          Under  Coleman, reasonable suspicion  that  a
person  is committing or has committed a crime  is  not
enough,  by  itself, to justify an investigative  stop.
Rather,  the  suspected crime must create  an  imminent
danger to the public, or it must involve recent serious
harm to persons or property.  Coleman, 553 P.2d at 46.
          In  footnote  17 of the Coleman opinion  (553
P.2d  at  45), the supreme court expressed its  concern
that  an open-ended rule for investigative stops  would
pose a danger of serious and unintended erosion of  the
constitutional protection against unreasonable searches
and seizures.  Based on this concern, our supreme court
declared that the doctrine of stop and frisk enunciated
in  Terry  should  not  be extended  beyond  situations
          requiring immediate police response to protect the
public in serious cases where there is a likelihood  of
imminent  danger about to occur or where  serious  harm
has recently been perpetrated [on] persons or property.
          In  Josephs  case,  Officer  Reynolds  had  a
reasonable suspicion that Joseph and his companion  had
been smoking a marijuana cigarette just before Reynolds
arrived on the scene.  It is also possible (although we
do  not  decide  this) that Reynolds had  a  reasonable
suspicion  that  one of these two men  might  still  be
carrying marijuana on his person.  But Coleman requires
that  the  suspected criminal activity pose an imminent
danger  to the public safety or that it involve  recent
serious  harm  to  persons or  property.   The  use  or
possession of a marijuana cigarette on a public  street
does not meet this test.
          The  State points out that this Court  upheld
an investigative stop in Pooley v. State, 705 P.2d 1293
(Alaska  App.  1985),  when  the  suspected  crime  was
possession of marijuana for purposes of distribution or
sale.   But as we carefully pointed out in Pooley,  the
Coleman  test was met because the police had  an  amply
support[ed]   suspicion   that   Pooley   had    [just]
transported substantial quantities of illegal  drugs  a
long distance for commercial purposes, not just that he
possessed   small  quantities  of  illegal  drugs   for
personal use.  Pooley, 705 P.2d at 1307.
          We  then explained why we concluded that  the
transportation of controlled substances for the purpose
of  unlawful  commercial distribution met  the  Coleman
requirements for an investigative stop:
The   illegal   trafficking   of   controlled
substances is a major problem in Alaska.  The
lucrative  profits  to be made  from  illegal
drug  sales  have  attracted an  increasingly
high   level   of   criminal  activity,   and
widespread  distribution  of  illegal   drugs
poses  a  serious danger to  the  health  and
safety  of  many potential users,  especially
among  school-age children.  Most  controlled
substances  sold  illegally  in  Alaska   are
imported  from  outside the state,  often  by
persons  acting as drug couriers.  We believe
the  public,  as well as the police,  have  a
vital interest in assuring that illegal  drug
traffic  is  detected  and  curtailed  before
illicit   drugs  are  actually  placed   into
distribution  in Alaska.  Compare  Hubert  v.
State,  638  P.2d  677, 685-86  (Alaska  App.
1981)   (even  though  crime  actually  being
investigated was relatively minor  felony  of
receiving  and  concealing  stolen  property,
connection of the stolen property with recent
burglary,  coupled with high police  interest
in recovering proceeds of a theft before they
are   placed   in   the  chain   of   illegal
distribution    and   dispersed,    justifies
conclusion that Coleman standard was met).

Pooley, 705 P.2d at 1307.
          Based   on   this   analysis,    we
concluded that if the police had a reasonable
suspicion  that Pooley was a commercial  drug
courier,  this  was tantamount to  reasonable
suspicion that his conduct  posed an imminent
danger to public safety  and, therefore,  the
investigative  stop  satisfied  the   Coleman
test.  Id.
          But  in  an  accompanying  footnote
(footnote  9),  we echoed the supreme  courts
concern  that, unless limits were  placed  on
law   enforcements   authority   to   conduct
investigative   stops  based  on   reasonable
suspicion,   the  doctrine  of  investigative
stops  might  become [a] vehicle for  serious
and  unintended erosion of the constitutional
protections  against  unlawful  searches  and
seizures.  Pooley, 705 P.2d at 1307 n. 9.  In
particular,  we warned that our  decision  in
Pooley  should  not be viewed as  authorizing
investigative  stops based on  the  suspicion
that  a  person is in possession of  a  small
quantity of a controlled substance in a  non-
commercial context:

A  situation  in which [the]  police  have  a
reasonable   suspicion  that  a   person   is
transporting   illegal  drugs  for   eventual
distribution  in  [this]  state  is   clearly
distinguishable  from a  situation  in  which
[the] police suspect that an individual is in
possession of a small quantity of an  illegal
drug  or  have  no  reason  to  believe  that
distribution  is  contemplated.   The  latter
situation raises the spectre of routine stop-
and-frisk procedures [whose primary object is
to conduct a search].

          Josephs  case presents  the  latter
situation    described   in   Pooley:     the
possession  of  small quantities  of  illegal
drugs  in a non-commercial context.   Officer
Reynolds  suspected Joseph of using  a  small
amount  of marijuana in a public place   and,
conceivably,  possessing a  small  amount  of
marijuana in a public place for personal use.
Our  decision in Pooley does not  support  an
investigative stop under these circumstances.
Rather,  Pooley  strongly suggests  that  the
investigative stop in Josephs case  does  not
meet  the  Coleman test for  imminent  public
          The   State  also  relies  on   our
decision  in  State  v. G.B.,  769  P.2d  452
(Alaska  App.  1989), where  we  adopted  and
applied  a  flexible approach to the  Coleman
requirement of recent serious harm to persons
or property.
          The  issue  in G.B. was  whether  a
state   trooper  was  justified  in   briefly
detaining a juvenile suspected of shoplifting
a  videotape minutes before.  On appeal,  the
juvenile argued that, as a matter of law, the
theft  of a single videotape did not  qualify
as  recent  serious harm to  property.   This
Court disagreed; we ruled that, depending  on
the circumstances, a brief detention might be
justified to investigate even a minor  theft.
We  declared  that, [w]hile  the  theoretical
seriousness of the [suspected] crime ... is a
significant factor ... , it is not in  itself

     Coleman  speaks  in  terms  of  imminent
threats   to   public  safety  and   recently
committed serious harm.  In so doing, Coleman
recognizes   that   the  extent   of   danger
threatened  by  a  potential  crime  or   the
seriousness  of harm resulting from  a  crime
that  has  already been committed  cannot  be
evaluated in the abstract.  Rather, a  threat
to   public  safety  must  be  considered  in
conjunction  with  the  imminence   of   that
threat.   A  given  threat to  public  safety
might not justify an investigative stop  when
the  danger  threatened is not immediate  and
when  circumstances would  permit  additional
efforts  to  obtain probable cause.   As  the
danger   becomes  more  immediate   and   the
opportunity   for  additional   investigation
diminishes, the same threat might  justify  a
stop  based  on  reasonable suspicion  alone.
Likewise,  once  a crime has been  committed,
the seriousness of the resulting harm must be
considered in connection with the recency  of
the  crime.   The less recent the crime,  the
more  serious the offense must be  before  an
investigative   stop  based   on   reasonable
suspicion alone will be justified.

     These  factors must in turn be  balanced
against   the   strength   of   an   officers
reasonable    suspicion   and   the    actual
intrusiveness of the investigative stop.  The
seriousness of harm necessary to  support  an
investigative  stop  will  thus  increase  or
diminish in any given case depending  on  the
totality of the circumstances surrounding the
stop  itself.   A  minimally  intrusive  stop
based on solid information indicating that  a
crime  is  actually in progress or  has  just
been completed may be justified under Coleman
even  when the crime itself is not  a  felony
and  involves  harm  that in  other  contexts
might not seem particularly serious.

G.B., 769 P.2d at 455-56.
          In  Gibson v. State, 789 P.2d  383,
384   (Alaska   App.  1990),  applying   this
flexible approach to Colemans recent  serious
harm  to  property test, we upheld the  brief
investigative detention of a person suspected
of   vandalizing  a  pay  telephone   minutes
          Based on our decisions in G.B.  and
Gibson,   the   State  argues  that   Officer
Reynolds   could   justifiably   conduct   an
investigative  stop  of  Joseph  even  though
Josephs suspected offense was de minimis.  We
conclude  that  this  would  be  an  improper
expansion  of  G.B.s  flexible  approach   to
          True, G.B. and Gibson stand for the
proposition  that the phrase  recent  serious
harm   to   property  should  be  interpreted
flexibly, so as to allow a brief detention to
investigate   a  relatively  minor   property
offense if the offense is recent enough,  the
need for immediate police action is apparent,
and the detention is sufficiently limited.
          But  G.B.  and Gibson both involved
real   (albeit  relatively  minor)  harm   to
someones property.  In G.B., it was theft  of
a  videotape; in Gibson, vandalism of  a  pay
telephone.  These cases do not stand for  the
proposition  that  Colemans  requirement   of
recent  serious harm to persons  or  property
can   be  interpreted  so  flexibly   as   to
completely  eliminate  the  words   harm   to
persons or property.
          Officer  Reynolds had no reason  to
suspect that Joseph posed an imminent  danger
to  anyones safety, and no reason to  suspect
that  Joseph had recently caused harm to  any
person  or property.  Thus, our decisions  in
G.B.   and   Gibson   do  not   support   the
investigative stop in Josephs case.
          For these reasons, we hold that the
investigative stop in this case violated  the
Alaska   Constitution   as   interpreted   in
          At  two places in the States  brief
(pages  9  and  20),  the State  mentions  in
passing  that Officer Reynolds may  have  had
probable  cause to arrest Joseph for  smoking
marijuana in public.  If Reynolds had  lawful
justification  for arresting Joseph  when  he
began  to  chase  him, this would  allow  the
State  to  escape the Coleman  strictures  on
investigative stops.
          It  is unclear whether the State is
seriously  advancing this argument   because,
at  yet  another  place in the  States  brief
(page 22), the State suggests that there  was
no  probable cause to arrest Joseph until  he
tossed  away the baggie of cocaine.  However,
even assuming that the State is offering this
as an alternative rationale for upholding the
trial  courts  ruling, we reject  the  States
          Reynolds   arguably  had   probable
cause  to  believe that Joseph had just  been
smoking  a  marijuana  cigarette  in  public.
Joseph  fit the description given by the  911
caller,  Joseph was in the location described
by  the caller, and Reynolds could smell  the
odor  of  burning marijuana coming  from  the
area where Joseph, the other man, and the two
women  were  standing.  But under Alaska  law
(with   certain  exceptions  that   are   not
pertinent here), even though a police officer
has  probable cause to believe that a  person
has  committed  a  misdemeanor  offense,  the
officer  is  prohibited  from  arresting  the
person  for  that  offense  unless  (a)   the
officer  has  an arrest warrant  or  (b)  the
misdemeanor  is  committed  in  the  officers
presence.  AS 12.25.030  12.25.035.
          Reynolds  had no warrant to  arrest
Joseph, so the validity of any arrest  hinged
on  whether Josephs act of smoking  marijuana
in  public  occurred  in Reynoldss  presence.
Although  the evidence in this case may  have
strongly  suggested  that  Joseph  had   been
smoking a marijuana cigarette in public  just
prior  to  Reynoldss arrival  on  the  scene,
there  was  no evidence that Joseph continued
to   commit  this  offense  in  the  officers
presence.   Accordingly,  Reynolds   had   no
authority to arrest Joseph for this suspected
          This  point of law is explained  in
Wayne  R.  LaFave,  Search  and  Seizure:   A
Treatise  on  the Fourth Amendment  (4th  ed.
2004),  5.1(c), Vol. 3, pp. 30-32:

     [Although it] is generally accepted that
an  officer may utilize all of his senses  in
determining   whether   a   misdemeanor    is
occurring[,] ... [i]t must be emphasized  ...
that it is not enough that the officer relies
upon  his own senses in determining  that  an
offense  has  occurred; the offense  must  be
occurring  while  the  policeman  is  on  the
scene.   Thus,  an officer may  not  make  [a
warrantless] arrest for a misdemeanor battery
merely because he has been told by the victim
that  the  defendant, [who is] still present,
struck  her  prior  to  the  arrival  of  the
police,  and  this  is so  even  though  [the
victims] story is largely corroborated by the
officers   observation  of   her   [physical]
condition.  Likewise, [a warrantless]  arrest
may  not  be  made  for  the  misdemeanor  of
driving  under the influence of  intoxicating
liquor when an officer comes on the scene  of
an  auto  accident  and finds  the  defendant
there, even though the defendant is obviously
intoxicated  and  admits  that  he  had  been
driving the vehicle.

          As we explained earlier, the States
argument  of this point consists of a  couple
of  isolated and conclusory assertions  about
the  existence of probable cause.  Given  the
evidence   in  this  case,  and   given   the
established  law  on this point,  it  appears
that the States argument is meritless.

The  Alaska  Constitution requires suppression  of
evidence obtained by the police as a result of  an
attempt  to  conduct an unjustified  investigative

     While  the  police were chasing  him,  Joseph
took out the plastic baggie containing the cocaine
and threw it to the ground.  This action might  be
viewed as an abandonment of the cocaine.  However,
as  this  Court noted in Young v. State,  72  P.3d
1250,   1255   (Alaska  App.  2003),   [a]cts   of
abandonment  prompted by unlawful  police  conduct
are  generally considered the tainted fruit of the
illegality.6  Thus, because Joseph threw away  the
cocaine   in   response  to  police   efforts   to
unlawfully  seize him (that is, police efforts  to
subject  him  to an unlawful investigative  stop),
the  cocaine would be viewed as the tainted  fruit
of the police misconduct.
          But,  as  we pointed out at the beginning  of
this opinion, the United States Supreme Court has ruled
that the exclusionary rule does not apply to situations
like  the  one  in  Josephs case   situations  where  a
suspect  throws  away  or  otherwise  reveals  physical
evidence  while the police are attempting to unlawfully
seize   the   suspect,  before  the   police   actually
accomplish the unlawful seizure.  California v.  Hodari
D.,  499  U.S.  621, 111 S.Ct. 1547,  113  L.Ed.2d  690
          The  facts of Hodari D. are quite similar  to
the  facts of Josephs case.  A pair of police  officers
on  patrol  saw a group of four or five youths  huddled
around  a car that was parked at the curb of a  street.
As  the police car approached, the youths began to  run
away.    Believing   that  the  youths   behavior   was
suspicious,  the two officers gave chase   one  in  the
patrol  car,  and one on foot.  The police  officer  on
foot  began running after Hodari D..  When the  officer
was  almost  upon  him,  Hodari  D.  tossed  away  what
appeared to be small rock.  Moments later, the  officer
tackled  Hodari D. and handcuffed him.  The small  rock
proved to be crack cocaine.7
          The California Court of Appeal ruled that the
police had no justification for chasing Hodari D.,  and
the  court further ruled that Hodari D. had been seized
when  the  police officer gave chase.  Thus, the  court
concluded,  the exclusionary rule required  suppression
of  the  cocaine that Hodari D. threw away  during  the
          The  United States Supreme Court accepted the
California  courts  ruling  that  the  police  had   no
justification for chasing Hodari D..  Nevertheless, the
Supreme  Court declared that the California  court  had
committed error when it suppressed the cocaine  because
the Fourth Amendment protects only against unreasonable
seizures, and Hodari D. had not been seized until after
he  threw away the cocaine in the sight of the  police.
Justice Scalia, writing for the majority, explained:
     [T]he   Fourth   Amendments   protection
against  unreasonable ...  seizures  includes
seizure  of the person.  [But from] the  time
of  the  founding  [of this country]  to  the
present, the word seizure has meant a  taking
possession [citations to various dictionaries
omitted].   For most purposes at common  law,
the  word  connoted not merely  grasping,  or
applying  physical force to, the [person  or]
object in question, but actually bringing  it
within physical control.
     . . .

The  narrow  question before us  is  whether,
with  respect to a show of authority [by  the
police],  a  seizure occurs even  though  the
subject does not yield.  We hold that it does
     . . .

[When] a policeman yell[s] Stop, in the  name
of   the  law!  at  a  fleeing  [person  who]
continues to flee[, there] is no seizure.

Hodari D., 499 U.S. at 624, 626; 111 S.Ct. at 1549-1550.
Justice Scalia then declared that this result was fully
consistent  with  the policy of the  exclusionary  rule
that  is, the policy of deterring police misconduct  by
depriving  the  government  of  the  evidence  obtained
through that misconduct:

[Public]  compliance with  police  orders  to
stop should ... be encouraged.  Only of a few
of  those  orders, we must presume,  will  be
without  adequate  basis  ...  .   [Moreover,
unlawful] orders will not be deterred ...  by
[applying]  the exclusionary rule [to]  those
of them that are not obeyed.  Since policemen
do not command Stop! expecting to be ignored,
or  give chase hoping to be outrun, it  fully
suffices  to  apply  the  deterrent  [of  the
exclusionary  rule solely] to ...  successful

Hodari D., 499 U.S. at 627, 111 S.Ct. at 1551.
          Based  on  Hodari D., the State asserts that no  Fourth
Amendment  violation occurred in Josephs case because  (1)  there
was  no  seizure  of  Josephs person until  the  police  actually
succeeded  in subduing him, and (2) by that time, the police  had
probable  cause to arrest Joseph  because Joseph had  thrown  the
baggie  of cocaine to the ground in Officer Reynoldss sight.   In
other  words, the State argues that no Fourth Amendment violation
preceded  Josephs act of throwing the cocaine to the ground,  and
thus  the  cocaine  should  be deemed abandoned  property  (i.e.,
admissible evidence) rather than the fruit of police illegality.
          The  State  acknowledges that Hodari D. was decided  on
federal law grounds and that, [t]o date, [the] Alaska courts have
not  yet  [expressly] ruled on whether the Hodari  [D.]  standard
will  apply  under the Alaska Constitution.  However,  the  State
contends  that this Court implicitly endorsed Hodari D.  when  we
decided Castle v. State, 999 P.2d 169 (Alaska App. 2000).
          In  Castle,  the defendant walked away  from  a  police
officer after the officer unjustifiably ordered the defendant  to
remain at the scene of a traffic stop and wait to be interviewed.
The  officer chased Castle, and he eventually caught  Castle  and
subdued  him.   A  subsequent search of Castles  pockets  yielded
several small bags of cocaine.9
          In  our analysis of these facts, we concluded that  the
police  officers  request for Castle to stop and  be  interviewed
was,  in  fact, a directive  a show of authority:   a  reasonable
          person in Castles position would believe that the officer was
ordering  him  to  stop  and submit to  questioning.10   We  then
               At  that point, a seizure occurred   or,
          more precisely, a seizure would have occurred
          had Castle followed the officers instruction.
          As  it  happened, Castle ignored the officers
          order.   The  actual seizure occurred  a  few
          moments later when [the officer] chased after
          Castle,  blocked  his path  with  the  patrol
          vehicle, and wrestled him to the ground.
          Castle, 999 P.2d at 172.
          The   State  points  out  that  our
analysis of this point  i.e., our analysis of
what  constitutes  a  seizure   is  the  same
analysis that the United States Supreme Court
adopted   in  Hodari  D..   This   is   true.
However,  despite  our  agreement  with   the
Supreme   Court  about  what  constitutes   a
seizure,  we differed with the Supreme  Court
on  the  key issue in the case:  whether  the
exclusionary  rule  should  apply   to   this
          In  Castle,  the State argued  that
even   if   the  police  initially   had   no
justification for ordering Castle  to  remain
at  the  scene  and  be interviewed,  Castles
later  actions  gave the  police  grounds  to
arrest him  because, while Castle was fleeing
from the police, he violated municipal law by
running in the middle of a street.11  We held
that  even if this was true, the exclusionary
rule  precluded  the State  from  relying  on
Castles  violation  of  municipal  law  as  a
ground  for  arresting him   because  Castles
action  was a direct response to the officers
attempt to unlawfully detain Castle:

     [T]o  evaluate the States  argument,  we
must  examine and clarify a particular aspect
of  the  exclusionary rule:  When the  police
violate  the  Fourth Amendment by  unlawfully
seizing  or unlawfully attempting to seize  a
person, and the person responds by committing
a  crime,  may  the person be prosecuted  for
this    crime   notwithstanding   the   prior
illegality?  Or is the crime to be  deemed  a
fruit  of  the  police  illegality,  so  that
evidence of this crime must be suppressed?

     This  issue  is discussed by  Professors
LaFave, Israel, and King in their treatise on
criminal procedure.[12]  According to LaFave,
     ...  the answer [lies] in the underlying
deterrent purpose of the exclusionary rule:

     Incriminating admissions and attempts to
     dispose  of  incriminating  objects  are
     common  and predictable consequences  of
     illegal  arrests and searches, and  thus
     to  admit  such evidence would encourage
     such  Fourth  Amendment  violations   in
     future cases.  ...

LaFave,  9.4(f), Vol. 3, pp. 380-81.

Castle, 999 P.2d at 175.
          We  then discussed three cases from
other  states  State v. Alexander,  595  A.2d
282  (Vt. 1991); People v. Felton, 581 N.E.2d
1344, 576 N.Y.S.2d 89 (N.Y. 1991); and People
v.  Cantor, 324 N.E.2d 872, 365 N.Y.S.2d  509
(N.Y.  1975)   in  which courts  applied  the
exclusionary  rule to suppress evidence  that
was the fruit of unlawful police attempts  to
detain the defendant.13
          Following our discussion  of  these
three cases, we stated:

[Although] we do not necessarily endorse  the
results  in [these] cases, ... we do  endorse
the principle espoused by LaFave and employed
by  the  courts  in  Alexander,  Felton,  and
Cantor.  When a defendant commits a crime  in
response to an illegal search or seizure, the
policy  of  the  exclusionary rule   societys
interest in deterring police misconduct  must
govern  any  decision  whether  to  admit  or
suppress evidence of the defendants crime.

Castle, 999 P.2d at 177.
          We  then  explained why suppression
of  evidence in cases like Castle   that  is,
suppression  of  evidence  obtained  by   the
police   as  the  result  of  their  unlawful
attempt  to  detain  a  citizen   served  the
underlying goals of the exclusionary rule:

     One   of   the   major   aims   of   the
exclusionary rule is to deter the police from
engaging   in   the  unlawful  detention   or
restraint of our citizens.  Societys interest
in    deterring    unlawful    arrests    and
investigative  stops would be  ill-served  if
the police could unlawfully seize (or try  to
seize)   someone,  only  to   later   justify
themselves by proving that the victim of this
unlawful  seizure  ran into  the  street,  or
     crossed against a red light, or jaywalked, or
trespassed  by running across municipal  park
land  when  it  was closed,  or  littered  by
throwing contraband to the ground.   In  such
instances,  [the]  defensive  action  by  the
victim  can fairly be characterized as having
been  brought about by exploitation  [of  the
illegal conduct].  [LaFave,  9.4(f), Vol.  3,
p.  381.]  This being so, courts should apply
the  exclusionary  rule to deter  the  police
from future similar misconduct.

     In  Castles case, we conclude that  even
if  Castle broke the law by running into  the
middle  of  the street, his conduct  was  the
direct  result of [the officers]  unjustified
attempt  to  seize him.  We further  conclude
that  the  policy  of the  exclusionary  rule
would  be  undermined if we  allowed  Castles
conduct  to  form the justification  for  his
ensuing arrest and the search of his person.

Castle, 999 P.2d at 177 (text of accompanying
footnote inserted in brackets).
          Our  decision in Castle can rightly
be    criticized   in   one   respect:     we
consistently referred to Castles rights under
the    Fourth   Amendment,   but   we   never
acknowledged the United States Supreme Courts
decision  in  Hodari D..  That is,  we  never
acknowledged the fact that the Supreme  Court
had  already ruled that the Fourth  Amendment
is   not  violated  under  the  circumstances
presented in Castle.
          If we are to continue to follow the
rule that we announced in Castle  that is, if
we  are to continue to apply the exclusionary
rule  to  suppress  the  fruits  of  unlawful
police  attempts to detain citizens  then  we
must do so as a matter of state law.
          In  this,  we would not  be  alone.
Courts  in  more  than a  dozen  states  have
already  expressly rejected Hodari  D.  as  a
matter of state law:
          See  State  v.  Oquendo,  613  A.2d
1300,  1309-1310  (Conn. 1992);  Flonnory  v.
State,  805 A.2d 854, 857 (Del. 2001);  State
v.  Quino,  840 P.2d 358, 362 (Hawaii  1992);
Baker v. Commonwealth, 5 S.W.3d 142, 145 (Ky.
1999);  State v. Tucker, 626 So.2d  707,  712
(La.  1993);  Commonwealth  v.  Stoute,   665
N.E.2d 93, 96 (Mass. 1996); Matter of Welfare
of  E.D.J., 502 N.W.2d 779, 781 (Minn. 1993);
State  v.  Clayton,  45 P.3d  30,  34  (Mont.
2002); State v. Beauchesne, 868 A.2d 972, 978-
981  (N.H. 2005); State v. Tucker,  642  A.2d
401, 405 (N.J. 1994); People v. Hollman,  590
N.E.2d  204, 211-12; 581 N.Y.S.2d 619, 626-27
(N.Y. 1992); State v. Puffenbarger, 998  P.2d
788, 792-94 (Or. App. 2000); Commonwealth  v.
Matos, 672 A.2d 769, 775 (Pa. 1996); State v.
Randolph, 74 S.W.3d 330, 336-37 (Tenn. 2002);
State  v.  Young,  957 P.2d 681,  687  (Wash.
          See  also  Wayne R. LaFave,  Search
and   Seizure:  A  Treatise  on  the   Fourth
Amendment (4th ed. 2004),  9.4(d), Vol. 4, p.
456,  where  the  author  declares  that  the
result reached in Hodari D. is incorrect, and
that  the  decision  in Hodari  D.  is  aptly
characterized ... as [a] manifestation of the
[Supreme]  Courts surreal and Orwellian  view
of    personal   security   in   contemporary
          We  agree  with these other  states
that  the  United  States Supreme  Court  has
adopted  an  interpretation  of  the   Fourth
Amendment  and  the  exclusionary  rule  that
fails  to  adequately safeguard our  citizens
right  to  privacy, that fails to  adequately
protect  citizens from unwarranted government
intrusion, and that unjustifiably reduces the
incentive   of  police  officers   to   honor
citizens constitutional rights.  As we stated
in   Castle,  when  the  police,  whether  by
physical  force  or  by  show  of  authority,
undertake  to  restrain  the  freedom  of   a
citizen,  the  principles of the exclusionary
rule apply equally regardless of whether  the
police  succeed  in  unlawfully  seizing  the
person or merely attempt to do so.
          We therefore reject the decision in
Hodari  D.  as inconsistent with  Article  I,
Section  14  of the Alaska Constitution   the
provision that guarantees [t]he right of  the
people to be secure in their persons ...  and
property  ...  against unreasonable  searches
and seizures.


     We   conclude  that  Officer  Reynolds  acted
illegally  when he attempted to detain  Joseph  at
the  scene  by a show of authority,  and  when  he
chased  Joseph  after  Joseph  fled  rather   than
obeying  the officers command to stay.  We further
conclude  that,  under  the  Alaska  Constitution,
Josephs  act of tossing away the baggie of cocaine
is  the  fruit of this illegality, and the cocaine
must be suppressed.
     We  acknowledge that our decision means  that
Joseph  will  escape criminal  liability  for  his
conduct   his possession of a significant quantity
of  cocaine  that  was divided  into  some  twenty
smaller packages, apparently for sale.  But as the
Wyoming Supreme Court noted in Damato v. State, 64
P.3d 700, 710 (Wyo. 2003), few decisions involving
the law of search and seizure vindicate the rights
of innocent people.
          As   Justice  Felix  Frankfurter  said,   the
safeguards  of liberty have frequently been  forged  in
controversies  involving not very nice people.   United
States  v.  Rabinowitz, 339 U.S. 56, 69, 70 S.Ct.  430,
436, 94 L.Ed. 653 (1950) (Frankfurter, J., dissenting).
When  we  perform our duty to interpret the search  and
seizure  clause  of  our  state  constitution,  and  to
enforce the exclusionary rule, we are obliged to ignore
Josephs  apparent guilt and to focus, instead,  on  the
legality  or illegality of the police actions that  led
to the discovery of the evidence.
          The  judgement  of  the  superior  court   is

     1AS 11.71.030(a)(1).

     2AS  11.71.060(a)(1), as limited by Noy v.  State,  83  P.3d
538, 543 (Alaska App. 2003), rehearing denied 83 P.3d 545 (Alaska
App. 2003).

3AS 11.71.060(b).

4Terry, 392 U.S. at 21-22, 88 S.Ct. at 1880.

5See Goss v. State, 390 P.2d 220 (Alaska 1964), and Maze  v.
State, 425 P.2d 235 (Alaska 1967).

6Citing Cox v. State, 586 So.2d 1321, 1322 (Fla. App. 1991)
(holding that when the defendants act of abandoning  or
dropping a package of marijuana was prompted by or  was
the   result   of   an  illegal  stop,  the   purported
abandonment  could not be used to justify a warrantless
search);  State  v. Belton, 441 So.2d 1195,  1199  (La.
1983) (When police officers make an investigatory  stop
without the legal right to do so, property abandoned or
otherwise  disposed of as a result  thereof  cannot  be
legally  seized.); Comer v. State, 754 S.W.2d 656,  659
(Tex. App. 1986) (abandonment must occur independent of
any police misconduct).

7Hodari D., 499 U.S. at 623, 111 S.Ct. at 1549.


9Castle, 999 P.2d at 170-71.

10Id. at 172.

11Id. at 174-75.

12Wayne R. LaFave, Jerold H. Israel, and Nancy J. King,
Criminal Procedure (2nd ed. 1999),  9.4(f), Vol. 3, pp.

13A detailed explanation of these three cases is contained
in Castle, 999 P.2d at 176-77.

14Quoting Ronald J. Bacigal, The Right of the People to be
Secure, 82 Ky. L. J. 145, 146 (1993).

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